Beginning on July 1, 2019, Virginia employers must, for the first time, disclose certain employment records of current and former employees upon request. See Va. Code § 8.01-413.1. This blog post answers some essential questions about the new law.
What does the law require an employer to disclose? The law states that upon request of a current or former employee, or employee’s attorney, an employer must disclose: “a copy of all records and papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer.”
When must the disclosure be made? Employers must provide this information within 30 days of the request. If unable to meet this deadline, the employer must notify the requester in writing of the purpose of the delay and disclose the materials within 30 days of its written notification.
Are there any exceptions to disclosure? In certain limited circumstances, the records must be furnished to the employee’s attorney or authorized insurer rather than the employee—including where the employee’s doctor has included in the employee’s records a statement that furnishing the records to the employee would be reasonably likely to endanger the life or physical safety of the employee, or where the records make reference to another person (other than a health care provider) and the access requested would be reasonably likely to cause substantial harm to such referenced person.
Who bears the cost of the disclosure? The employer may charge the requester a reasonable fee for making copies and processing the request.
What is the consequence if an employer fails to comply? Upon failure of any employer to comply with the new law, the employee or his attorney may demand the documents by subpoena. If the employer’s noncompliance is willful, the court may award damages for all expenses incurred by the employee to obtain their employment record, reasonable attorneys’ fees, and a refund of the fees charged by the employer to the employee for fulfilling the request. “Willful” noncompliance means: “(i) . . . failing to respond to a second or subsequent written request, properly submitted by the employee in writing, without good cause or (ii) . . . imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers.”
When does the law take effect? July 1, 2019.
What should employers do to comply? Virginia employers should consider revising any policy that may prohibit employees from obtaining access to any personnel records to allow the disclosures required by this law. Employer should also consider establishing a process for timely responding to employee requests for the records covered by this law, including designating who will be tasked with determining what records must be disclosed and gathering and providing this information.
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For more information regarding this law, please speak to the author listed in this article or the Hogan Lovells lawyer with whom you work. A special thanks to summer associate Kellie Majcher for her assistance with this blog post.